Recent measures to drive the public towards approaching barristers directly have met with a mixed reaction, both among potential law firm rivals and at the Bar. Helen Mooney reports

There are no two ways about it. After years of effectively being a closed shop, the Bar is opening up. A number of initiatives over the years have seen it attempt to open its doors to a more diverse range of young barristers. 

And more recently, it attempted to stop relying on its traditional referring solicitor client base to attract a more diverse range of clients – whether or not solicitors liked it. The popularity of the scheme myBarrister – to launch later this year – an online service that will promote direct access to the Bar through a centralised portal of barristers, is the latest in a string of moves by the Bar to increase direct instructions from clients.

The changes are largely down to a concerted push from several individual barristers and sets to increase direct access in light of funding cuts, especially to legal aid, as well as to increased competition from solicitors looking to bring more advocacy work in-house. 

In another move that brought barristers closer to their clients, last autumn the Bar Council launched BARCO. The third-party account effectively allows barristers to handle client money for the first time, with BARCO retaining the money, but the Bar having contractual rights access to it. As the regulatory doors to multi-disciplinary partnerships and alternative business structures (ABS) widen, barristers will be forced to become ever more innovative to keep pace with new entrants.

A long time coming

Direct access – or, as the Bar Council prefers, public access to the Bar – is not a new concept. Its Public Access Rules came into force in 2004, enabling ordinary members of the public to instruct barristers, although companies and other organisations have been able to go directly to chambers for far longer through the Bar Council's 'licensed access' route. Foreign law firms and companies have always been allowed direct access to barristers.

According to the Bar Council's chair Maura McGowan QC: "There is so much changing in the legal market. Everybody is looking at what they do [and] how they do it."

She says that more direct access from the public and internationally – as well as the move to open up the range of providers from claims management firms, ABSs and a greater involvement in the market from legal executives – means that there is much more fluidity in the market today.

"Solicitors in family work have always done a lot of the advocacy. Post-Carter, they do much more in criminal work. A client can now go directly to a solicitor for everything. Equally there are some clients who now want a barrister to represent them from beginning to end," says McGowan.

She adds that the Bar Council as an organisation welcomes the "greater opportunity for access to the Bar". But she does not believe it will be inundated with direct access clients.

"It is fine for barristers to take on more direct access cases so long as they are the right fit for the client and the barrister is able to make sure that the client has what they need. There are still only a few thousand self-employed barristers doing this work throughout the country, so the majority of work will still go through solicitors."

Reacting to change

Head of Monckton Chambers Paul Lasok QC believes that the changes to the Bar have come about because of legislation designed to "open up the market for legal services and break down what is perceived to be the rigid distinction between barristers and solicitors". 

He also warns that the Bar "has got to react to that change in the way that legal services are provided".

Lasok even speculates about the possibility of chambers "evolving" into law firms to compete for work and take on more direct access clients.

"Will sets of chambers evolve into law firms? It is a question some chambers will have to confront. In some cases, providing a partnership structure will make them more efficient. Some [sets] may at first try and create the infrastructure with paralegals, while maintaining chambers in a traditional form. But in the course of time, this may be unworkable and they would have to move to a partnership model."

He says that, ultimately, the opening up of the Bar to clients is being driven by the fact that barristers believe that for certain types of work they can offer "excellent value for money".

Lasok says that in any case, at present most people who come direct to barristers for advice, especially to the specialist commercial sets, tend to be "informed consumers who have in-house legal teams and are able to decide what provision of legal service is in their best interests".

Head of Fountain Court Chambers Tim Dutton QC (pictured, below) agrees: "Direct access has a role to play especially for clients who need only a barrister where the matter can be managed without the support of solicitors. 

"We do a lot of international work and we might, for example, have a New York law firm who has for generations contacted us directly for specific advice or for expert opinions which works fine. But it does not require us to have lots of support staff and systems in place."

Chief executive of 39 Essex Street Chambers David Barnes points to the fact that many commercial clients are "controlling the relationship with their legal advisers".

He says: "Panel arrangements with barristers and law firms can be very effective. Client review meetings between clerks and the client are a relatively new development and they are growing in frequency. Some believe this development is cost-driven, but I think the growth of in-house legal departments is also a factor. I think most clients fully appreciate the value that barristers contribute to complex legal matters."

Direct access benefits

In contrast to the relatively normal practice of corporates creating a panel of law firm advisers, formal barristers' panels are still relatively rare but growing in number. 

Some public sector organisations and consortia have gone down this route and they often cite the speed and efficiency of the Bar as being one of the main advantages of direct access.  

According to one barrister: "General counsel have now become the powerbrokers. They're looking for the most efficient delivery of legal services." 

Figures from a recent report, 'Direct access to barristers: a survey of market views and needs', by legal research company Jures, commissioned by Hardwicke Chambers, show that almost a third of senior in-house counsel and company secretaries had instructed a barrister directly in the past two years, doubling the number who did so in 2008.

Ronald DeKoven QC, head of DeKoven Chambers and founder of myBarrister, believes real change is happening to the profession and that direct access to barristers is gaining ever wider appeal. He explains that the idea to set up myBarrister was born following a direct access course he attended at the Bar Council.

"There was a consensus in the class that because of regulatory changes and economic conditions, many barristers now find that their gross annual income is eroding each year. Many barristers were at the course because they were hoping that direct access would be their anchor to leeward."

However, he says many of the barristers he encountered on the course feared that, if solicitors learned they were accepting direct access work, the solicitors would punish them by not referring any more work.

"Those barristers that were going to risk it also felt that they did not know how to approach lay clients and that the cost in trying to do so was prohibitive."

So is the Bar worried about competition and the rise in the number of solicitor advocates? Head of Essex Court Chambers Richard Millett QC says not.  

"The Bar is absolutely not competing for solicitors' work. We are enmeshed with solicitors and work together with them as a singular team." 

Proactive campaigning

In any case, one of the main barriers to more in-house counsel or lay clients going down the direct access route seems to be that chambers have not been especially active about promoting themselves and demonstrating clearly what their capabilities are. 

But this is changing and there is an increasing feeling from certain quarters that the Bar is, or should be, competing for the work of solicitors. One senior clerk at a commercial set says that is a "very sensitive issue". He says: "The bulk of our work comes through English law firms and we are not going to go around trying to get them to blackball us. There is a perception by solicitors that things are changing and they are worried about their work. 

"There are a number of law firms in London who think we are trying to chip away at their market. Solicitors are now doing advocacy work, but as soon as we try and to do the work they do, they are up in arms about it."

And according to DeKoven, several sets are now "generating significant amounts of work every year through direct access".

Herbert Smith Freehills' dispute resolution partner Ted Greeno admits that there is now a lot of pressure on younger barristers with solicitors' firms also doing advocacy work: "The Bar probably feels it has to compete head-on."

However, he believes the Bar can only compete for work with law firms in limited areas: "I'm not sure chambers are set up to deal with members of the public on a day-to-day basis or provide the hand holding that many clients need. 

"If you are a member of the Bar doing this on your own, you have no resource to fall back on to do the tasks that do not require qualified lawyers. The Bar is not set up to do that."

Deskilling worries

Some are worried that in trying to play solicitors at their own game, barristers risk losing their own skill set. Dutton warns that barristers' skills should not be watered down.

"I don't think the way we operate in this country, where we have a core group of specialist advocates who give advice and who appear in court, is going to or should change. We should not dilute barristers' skills, time and affordability."

Barnes agrees: "I don't think barristers should deskill and, in effect, become solicitors and equally solicitors should not deskill and take on the work of barristers. Their respective skills are complementary.

"I think many barristers underestimate how much time solicitors have to spend managing their client relationships. In chambers clerks absorb much of this responsibility."

He believes that if barristers have to allocate time managing litigation, then they will lose their commercial advantage. 

"Everybody is more comfortable if they operate in an arena in which they perform regularly and court is no different," he adds.

It seems for now, opinion is split as to whether the Bar is ready, willing or indeed able to take on an increase in direct-access work. But only time will tell.

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myBarrister – online access to advisers

A new scheme to promote direct access to the Bar through a centralised portal of barristers, myBarrister is the brainchild of head of DeKoven Chambers, and former Shearman & Sterling partner, Ronald DeKoven QC (pictured).   

He was a banking and insolvency disputes partner at Shearman for around 20 years until 2000, when he joined 3-4 South Square before setting up his own chambers last March.

MyBarrister is a new online service that will allow individuals to search for a barrister in their area, select one from a relevant practice shortlist and submit their claim – all without the need for a solicitor.

The initiative is currently being soft-launched and is set to sign up as many as 150 barristers at the start, with more planned. Alongside the website will be a smartphone and tablet app. To be eligible to sign up, barristers must have been qualified for at least three years and have completed the Bar Council's direct access course. They will be charged a £1,200 annual subscription fee to be listed, while the portal will be free to access for clients.  

DeKoven explains that the idea to set up myBarrister came about after taking a direct access course last year. After learning that many barristers were looking to direct access to help shore up their practice, while at the same being fearful of the threat that solicitors who instruct them might blackball them, he came up with the idea.  

"Someone needed to create a company that was available to all barristers qualified for direct access, that would be properly capitalised to pay for advertising and that would have a scalable website. Barristers might then be comfortable signing up because the company would be able to do its job. myBarrister is that company."

He says for the scheme to work successfully, just 150 barristers will be signed up initially because there must be "a proper ratio of barristers to clients".

"The range of barristers the company has cuts across the entire bar, including a magic circle set. A significant minority are QCs, something that was not predicted."  

DeKoven explains that the original concept was that individual clients who have a hedge dispute, a divorce or a dispute over an estate would find the concept attractive because they will be "going directly to the person who would be handling the matter in court".  

But he adds that some barristers have signed up to the scheme because they also believe that complex cases may come through myBarrister.

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BARCO – direct access to client money

Barristers will be effectively able to handle client money for the first time, through a third-party account launched by the Bar Council which it says will give greater scope for direct instructions at the Bar.

BARCO, a third-party escrow account held with Barclays Bank, will allow barristers and clients to exchange money without the help of solicitors or breaching rules of conduct.

Under the current Bar Standards Board Code of Conduct, barristers are not allowed to hold client money, instead relying on solicitors to handle the finances of a case and pay them their fees.

The new scheme will see client money held by BARCO but under certain agreed circumstances the Bar will be able to access it.

There is speculation that the move could lead to more direct instructions at the Bar, giving room for barristers to operate more independently. BARCO is set to launch in full this spring following a pilot scheme currently underway with 11 sets, including 39 Essex Street and St Philips Chambers.

According to head of the Bar Council Maura McGowan QC, the increase in direct access work coming to barristers from the public – domestically and internationally – meant that BARCO was "quite an obvious step". She adds: "It will help facilitate direct access, and was initially driven by overseas legal firms coming directly to UK barristers for specific advice."

The Bar Council's tag line for BARCO – 'Working with the Bar has never been easier' – speaks of the high expectations that are being attached to the project.

BARCO should also provide barristers with a means of ensuring their own security over payment, without having to rely on the judgment of solicitors when it comes to determining whether a client is good for the fees or not.

According to chief executive of 39 Essex Street Chambers David Barnes: "It is not about cutting out the middle man – 95% of the Bar's work comes from solicitors and they are our professional clients. The BARCO arrangement has been set up to complement the changes in contracts and standard terms [between solicitors and barristers]."  

The legal profession has wrestled with the possibility of a shift in this direction for many years, with former Bar Council chairman Nicholas Green QC urging chambers to set up separate business units dubbed 'ProcureCos' in 2010, to help them compete with solicitors to win work from clients.  

However, with ProcureCos still proving too radical a step for most in the Bar, BARCO could prove the acceptable face of modernism for the forward-thinking advocate.